63 Tex. 82 | Tex. | 1885
We do not think that the ruling of the court, complained of in the second assignment of error, is erroneous. The invoice book does not seem to have been introduced as evidence, but for the purpose of refreshing the memory of the plaintiff Franke as to the kind of goods seized by the sheriff, and their value. He seems to have known that the list contained in the invoice was correct, and to have attached his valuation to each article in it. Although the prices attached might not have been admissible, if no more was shown than that they were the purchase prices with expenses added, yet when the witness stated that these were what the goods were worth at the place where they were seized and at the time of seizure, he stated the true measure of damages.
This was not the amount they would bring if sold at retail, nor what a purchaser would give if compelled to take the entire stock together; but it was their value in the packages and in the condition they were at the time of seizure. It was not improper to arrive at this by finding the value of the different articles composing the stock, and making an aggregate of the whole, in the same manner as a merchant would do who was buying the entire stock in trade of another.
We think that in view of the fact that the sum of the various
We are of opinion that the court erred in not allowing the counsel for appellants to ask the witness E. 0. Jannett as to his statements in conversation with Judge Mclver and others, to which the third assignment of error relates.
It is true that the statements of Jannett made subsequent to the transfer to appellees could not be introduced for the purpose of showing that the transfer was fraudulent; but they were admissible for the purpose of laying a predicate for the impeachment of the witness. The fact that E. O. Jannett was to have the goods back in a few days in his own name, and that if the levy had not been made they would have again come under his ownership, and that the levy by the appellants had broken him up, all tended to show an interest in the goods reserved to the grantor, and an understanding between him and the grantees that he was soon to become their owner again. These facts proven, the presumption of fraud was cogent, and the intent of the parties would probably have been developed. The facts,, therefore, were relevant to the issue, and whilst they could not be proved by the declarations of the grantee made under the circumstances, they came fully within the rule which allows the credibility of a witness to be impeached by showing that he has made statements out of court of facts relevant to the issue contrary to what he has testified at the trial. 1 Greenl. on Ev., § 462. The question should have been admitted for that purpose.
We think, too, that there was error in allowing the parties to the conveyance alleged to be fraudulent to testify as to their intent in executing and accepting the instrument. If the elements constituting fraud accompanied the sale, it was unimportant what the real object of the parties was; and no honest intention on their part would have made that valid which the law declares shall be void under the circumstances. For instance, if the property was sold for a small consideration or given to another, with the understanding that it was to be returned to the seller or held for his benefit, no secret intention to have it sold and apply the proceeds towards paying the debts of the party conveying would save the property from creditors who had been defrauded by the transaction.
IE the secret intent of the parties, to be proved by their own oaths, is to make that an honest transaction which the law brands as fraudulent, and the necessary consequences of which are to defraud innocent parties," then we can never establish fraud by circuin
If what the parties have to say as to their secret intentions is not, in the instance we have stated, to be admitted, its admission in any case as to proof of intent can have little other effect than to confuse the jury, and it should be excluded.
The court also erred in allowing proof as to what profits the appellees might have made from carrying on business with the goods levied on, had they nob been taken from their possession. We have frequently held that such profits were not to be taken into consideration in estimating compensatory damages. Railway Co. v. Joachimi, 58 Tex., 456; Railway Co. v. Young, 60 Tex., 201; Tucker v. Hamlin, 60 Tex., 171.
The court admitted proof of such profits in the present case to show the damage resulting to the business of appellees by reason of the seizure of the property by the sheriff at the instance of the appellants, and charged the jury that compensatory damages would include such as would reasonably compensate the plaintiffs for the interruption of their business and their consequent loss thereon. It is clear that the court by this charge authorized the jury to assess as compensatory damages the loss of profits sustained by the appellees, which charge is, in this respect, inconsistent with the previous decisions of this court already cited.
We are of opinion that for the errors indicated the judgment must be reversed and- the cause remanded; and it is accordingly so ordered..
Reversed and remanded.
[Opinion delivered January 20, 1885.]
